Drafting a Constitution Is Not Drafting a Statute: An Analysis of the Mexican Constitution and Hyper-Amending Pathologies from the Legislative Drafting Perspective

Jesús Manuel Orozco Pulido

Abstract

This note critically examines the way the Mexican Constitution has changed since it was originally written, due to a large number of amend¬ments. Through 239 decrees of constitutional reforms, which represent 732 modifications to constitutional articles, the current constitutional text is not the same document that arose from the Mexican Revolution. This vertiginous chan¬ge is analyzed from the perspective of theoretical and practical notions of legis¬lative drafting in common law countries. A huge number of reforms demons¬trates a constitution’s volatility, and the way reforms are written has a direct impact on whether or not it is observed. In fact, a proper process of redaction in legislative drafting can provide ideas for improving the quality of legislation. Reforming the constitution, as has been done by Mexican constituent powers, can overload the fundamental text with specific rules, rather than principles. An excessive use of words, an arbitrary use of subdivisions and an excessive num¬ber of transitory norms are common elements of constitutional amendments. Some specific traits of those amendments are analyzed in order to propose ways to improve the efficacy of the constitution through a better legislative drafting process for reforms. All of this in order to reach a better level of comprehension of the normative purpose of amendments by their final recipients: citizens and institutions.

Keywords

Mexican Constitution; legislative drafting; constitutional reform; legal efficacy.

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